A defamation lawsuit between a former governor and Mississippi Today could soon be heading to the courtroom after the state supreme court decided not to hear an appeal to protect the news organization’s sources.
Experts told the Clarion Ledger that not only could the lawsuit result in a damning precedent in the Magnolia State, but it could also put members of a Pulitzer Prize winning newsroom at risk of being put behind bars.
On Dec. 5, the Mississippi Supreme Court denied a petition for interlocutory appeal filed by Deep South Today, owner of Mississippi Today, a Ridgeland newsroom, seeking to block the revealing of sources and information related to its reporting on former Gov. Phil Bryant, those involved in the Mississippi welfare scandal and other related documents.
In a legal argument, Deep South Today requested the state’s highest appellate court to recognize reporter’s privilege in the matter, which would have protected it from having to reveal confidential sources and in-house communications and information.
“This case presents a question of first impression in this Court: whether the First Amendment or state law supplies a reporter’s privilege that shields the identity of confidential sources, along with notes, interviews, drafts, communications, and other journalistic raw materials, from discovery…,” Deep South Today’s attorneys wrote in a June appeal.
The court, in a two-page order, denied the news organization’s request for appeal and denied a motion by Bryant’s legal team seeking damages for a “frivolous” appeal. Only two judges, Jim Kitchens and Leslie King, cast dissenting votes on the order.
“This order is just another bend in the road on our trek to stand up for the First Amendment rights of our newsroom, our sources and that of every Mississippian,” Mississippi Today CEO Mary Margaret White said in a written response. “The Mississippi Supreme Court’s decision not to hear our appeal is disappointing, but it does not change our arguments or diminish our confidence. We are prepared to continue this fight in the circuit court and thank the thousands of Mississippi Today readers and supporters who are standing with us in our fight for a free press.”
In Mississippi, reporter’s privilege has only ever been used as a legal defense in trial courts, not appellate courts, attorney Leonard Van Slyke told the Clarion Ledger. The state also has no shield laws protecting journalists’ confidential sources or information related to their stories from being dragged out in a lawsuit or courtroom.
Van Slyke said the Supreme Court deciding not to hear it, while not an outright denial of privilege, could set a daunting precedent for newsrooms.
“For the benefit of the public, I think a reporter’s privilege is important because there are some stories that can’t or won’t be told without the ability to have an anonymous source,” Van Slyke said.
Mississippi Press Association Executive Director Layne Bruce said if Mississippi Today’s wish to keep its confidential sources anonymous and their private communications from the court is not upheld, it would negatively impact freedom of the press.
“It’s a very chilling prospect, and to use that word more than once, it would have a very chilling effect on the freedom of the press and the state, and that is clearly something that disturbs us deeply,” Bruce said.
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Van Slyke also said few options are left for the defendants to take if they wish to keep their confidential sources anonymous. The two most likely routes would be to ask the Mississippi Supreme Court to reconsider its decision or to petition an interlocutory appeal to the United States Supreme Court on the grounds of reporter’s privilege.
The other option, Van Slyke said, would be simply not to provide the requested documents, which could put them in contempt of court. If that happens, some of the defendants could face jail time. Mississippi Today Editor-in-Chief Adam Ganucheau and reporter Anna Wolfe are listed as defendants in the lawsuit.
Ganucheau declined to be interviewed for the story, passing along the statement from CEO White. Both Wolfe and Ganucheau are former Clarion Ledger staffers.
“Hypothetically, a court could say, and I don’t think it would ultimately, but they could say, ‘Sit there (in jail) until you decide you are going to tell me who your source is,’” Van Slyke said. “I don’t know if an appellate court would uphold that, but certainly, that’s the risk you have to consider.”
Why is Phil Bryant suing Mississippi Today for defamation?
The lawsuit was initially filed by Bryant in 2023 in the Madison County Circuit Court over comments made by White during a speaking engagement.
What White was referring to was Mississippi Today’s Pulitzer Prize winning news series “The Backchannel” which delved into how $77 million in Temporary Assistance to Needy Family dollars was funneled through the Mississippi Department of Human Services and into the hands of those who misspent the money, meant for the state’s poorest residents, on private projects.
Several of the people implicated in the reporting and through Mississippi State Auditor investigations have been criminally convicted in relation to the welfare scandal. Bryant has neither been charged nor formally implicated by prosecutors in the welfare scandal case.
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In May, the Madison County Circuit Court ordered Mississippi Today to hand over confidential sources and other documents related to their coverage as discovery. Mississippi Today argued that violated its constitutional rights.
What happens with the Mississippi Today lawsuit next?
In response to the latest update in the case, Bryant told news reporters on Dec. 17 at the Mississippi State Capitol that he believes he is in a good position.
“You can’t lie about people,” Bryant said. “You can’t slander people and call it news. And I think we’re seeing that across the country. I think you’re seeing it with ABC News, CNN news, people of this nation do not believe that the mainstream media now actually represents the truth.”
Last week, Bryant’s team filed a motion for Mississippi Today to appear on Jan. 8 and provide information requested by the court and to provide why they should not be held in contempt of court for not already submitting discovery information. Deep South Today’s attorneys have also filed a motion requesting more time to respond to the motion until Jan. 3 and to change the hearing to a status conference.
As of Thursday morning, the court date had been canceled and a new date has not yet been set, Court Administrator Nikki Jones said in a written response to the Clarion Ledger.
Grant McLaughlin covers the Legislature and state government for the Clarion Ledger. He can be reached at gmclaughlin@gannett.com or 972-571-2335.
This article originally appeared on Mississippi Clarion Ledger: MS Today, Phil Bryant lawsuit could affect how stories are reported